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Thursday, April 15, 2010

The Supreme Court And The State Of Liberal Jurisprudence

In the wake of John Paul Stevens' announced retirement from the U.S. Supreme Court, Slate legal columnist Dahlia Lithwick has just written a new column lamenting the unfortunate plight of the liberal law student, who is doomed to watch the process to replace Stevens unfold knowing that whoever his appointed successor turns out to be, he or she will not be an unabashed progressive nor an unapologetic defender of "living constitutionalism". Lithwick argues that the right-wing equivalents of such candidates have no difficulty being appointed to the court under Republican administrations, and that Republicans in Congress and conservative institutions in the media like Fox News have effectively tilted the playing field to the right when it comes to judicial appointments.

Color me skeptical. The responsibility for appointing judges to the Federal Bench (including the Supreme Court) falls on the Senate, which, while it may be somewhat more conservative than the electorate as a whole, is an elected body which responds to political pressure from the voters. If someone like Goodwin Liu has difficulty getting confirmed for a Federal seat, and isn't on the SCOTUS short list, it's most likely because his views are sufficiently liberal that forty-one Senators feel uncomfortable enough with him that they either won't vote for him or won't cast a cloture vote to end a filibuster on his behalf. While it's obvious that he'd never get the vote of red state stalwarts like Jeff Sessions or Tom Coburn no matter what he did, those Senators aren't in-of-themselves a sufficient bloc to scotch a nomination - he could only fail to be confirmed if he were opposed by moderates like Olympia Snowe and Scott Brown as well. That kind of by definition puts him too far left of the political mainstream to be a viable candidate. The fact that left-wing law students don't have anyone on the court they can look up to is unfortunate for them, but it's not because conservatives have gamed the process. It's because liberals have failed to persuade sufficient numbers of voters of the correctness of their jurisprudential philosophy to shift the political mainstream to the left and bring about the election of a more liberal Senate.

As for Lithwick's contention that right-wing jurists do not face the same obstacles to confirmation, it's plain wrong. Just ask Robert Bork. Lithwick (and many other liberals) may think of Bush II appointees John Roberts and Samuel Alito as "far right", and perhaps by the standards of the readership of a left-leaning publication like Slate they are, but in the American mainstream they're moderate enough that they could win appointment. It's this disconnect from the real political mood of the country, rather than an outright slant to the facts, that is the real problem with the so-called "liberal media".